WPIC16.01Justifiable Homicide—Peace Officer or Others in Aid of Officer
11 WAPRAC WPIC 16.01Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 16.01 (4th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
October 2016 Update
Part IV. Defenses
WPIC CHAPTER 16. Justifiable Homicide
WPIC 16.01 Justifiable Homicide—Peace Officer or Others in Aid of Officer
It is a defense to a charge of [murder] [manslaughter] that the homicide was justifiable as defined in this instruction.
Homicide or the use of deadly force is justifiable:
[when necessarily used by a peace officer to overcome actual resistance to the execution of the legal process, mandate, or order of a court or officer, or in discharge of a legal duty] [or]
[when necessarily used by a peace officer or person acting under the officer's command and in the officer's aid [to arrest or apprehend a person who the officer reasonably believes has committed, has attempted to commit, is committing, or is attempting to commit a felony] [or] [to prevent the escape of a person from a federal or state correctional facility or in retaking a person who escapes from such a facility] [or] [to prevent the escape of a person from a county or city jail or holding facility if the person has been arrested for, charged with, or convicted of a felony] [or] [to lawfully suppress a riot if the actor or another participant is armed with a deadly weapon]. In considering whether to use deadly force to arrest or apprehend any person for the commission of any crime, a peace officer must have probable cause to believe that the suspect, if not apprehended, poses a threat of serious physical harm to others. Among the circumstances that may be considered by a peace officer as a “threat of serious physical harm” are the following: (a) The suspect threatens a peace officer with a weapon or displays a weapon in a manner that could reasonably be construed as threatening; or (b) There is probable cause to believe that the suspect has committed any crime involving the infliction or threatened infliction of serious physical harm. Under these circumstances deadly force may also be used if necessary to prevent escape from the officer, when, if feasible, some warning is given.]
[A peace officer shall not be held criminally liable for using deadly force without malice and with a good faith belief that such act is justifiable.]
The State has the burden of proving beyond a reasonable doubt that the homicide was not justifiable. If you find that the State has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty.
NOTE ON USE
Use this instruction in any homicide case in which this defense is an issue supported by the evidence.
Use bracketed material as applicable.
Use WPIC 25.01 (Homicide—Definition) and WPIC 16.05 (Necessary—Definition), with this instruction. Use WPIC 2.09 (Felony—Designation of), WPIC 2.14 (Officer—Public Officer—Definition), WPIC 2.16 (Peace Officer—Definition), and WPIC 2.20 (Prisoner—Definition), as applicable with this instruction. The term “probable cause” will need to be defined for the jury, if the defense is raised that the homicide was justified under RCW 9A.16.040(1)(c). See RCW 9A.16.040(2).
The statute was amended in 1986 to address potential civil liability concerns relating to the use of deadly force by police officers under Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). In Garner, a civil action, the U.S. Supreme Court held that an officer may not use deadly force against a fleeing suspect unless such force is necessary to prevent the suspect's escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. Prior to Garner, the Washington Supreme Court had held that deadly force may be used when necessary to effect a felony arrest if an officer had reasonable grounds to believe and did believe that a felony had been committed. Reese v. Seattle, 81 Wn.2d 374, 503 P.2d 64 (1972).
RCW 9A.16.040(1)(a) states that homicide or the use of deadly force is justifiable when a public officer is acting in obedience to the judgment of a competent court. The word “competent” has not been included in the instruction, because competency of a court, as that term is used in the statute, is a matter of law to be determined by the trial judge.
The instruction will need to be modified for the rare cases involving public officers other than peace officers.
For a general discussion of whether the burden of proving a defense can be shifted to the defendant, see WPIC 14.00 (Defenses—Introduction).
[Current as of December 2015.]
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